D.M.E Engineering Services (Australia) Pty Ltd

[2024] FWCA 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D.M.E Engineering Services (Australia) Pty Ltd

(AG2024/887)

D.M.E ENGINEERING SERVICES (AUSTRALIA) PTY LTD – TUMUT PULP AND PAPER MILL MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 5 APRIL 2024

Application for approval of the D.M.E Engineering Services (Australia) Pty Ltd – Tumut Pulp and Paper Mill Maintenance Employees Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the D.M.E Engineering Services (Australia) Pty Ltd – Tumut Pulp and Paper Mill Maintenance Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DME Engineering Services (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided and it did not contain a title for the proposed Agreement. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

I observe that some provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 12 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved D.M.E Engineering Services (Australia) Pty Ltd and the employees of Tumut Pulp and Paper Mill. The dispute centred on the proposed Enterprise Agreement, which the company sought approval for from the Fair Work Commission. The Fair Work Commission was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009. The application for approval was heard by the Commission, which had to decide if the agreement met the necessary criteria for registration.

The legal issues before the Commission were primarily concerned with whether the proposed agreement was a genuine enterprise agreement, as defined by the Fair Work Act. This required an examination of whether the agreement had been made by the parties in good faith and whether it covered all employees who wished to be covered by it. Additionally, the Commission needed to ensure that the agreement did not undermine the existing minimum terms and conditions of employment, and that it was consistent with the broader objectives of the Fair Work Act, including promoting high levels of employment and economic prosperity.

The Fair Work Commission found that the proposed agreement was a genuine enterprise agreement. The Commission was satisfied that the agreement was made in good faith, covered all employees who wished to be included, and did not undermine the minimum terms and conditions of employment. Furthermore, the Commission concluded that the agreement aligned with the objectives of the Fair Work Act. Consequently, the Commission approved the agreement, finding it to be compliant with the necessary legislative requirements.

In approving the agreement, the Commission issued an order that the D.M.E Engineering Services (Australia) Pty Ltd – Tumut Pulp and Paper Mill Maintenance Employees Enterprise Agreement 2023 be registered. The order took effect from the date of the Commission's decision, ensuring that the terms of the agreement were legally binding on both the company and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established